A U.S. Immigration Clinic in the Age of Trump

By Amanda Frost & Ann Garcia

Amanda Frost is a Professor of Law and Acting Director of American University’s Immigrant Justice Clinic. Ann Garcia is a 3L at American University and a Student-Attorney in the clinic. This article is originally featured as a guest post on the University of Oxford Border Criminologies Blog. 

Over the past two weeks, President Trump followed through on his promise to upend the United States’ immigration system.  On January 25, he issued two executive orders on immigration.  His first order ramped up immigration enforcement, changed enforcement priorities, and sought to punish “sanctuary cities”—those localities which have refused to assist federal immigration officials in deporting unauthorized immigrants.  Trump’s second executive order calls on federal agencies to build a “physical wall along the southern border,” to hire 5,000 additional Border Patrol agents, and to build and staff additional detention facilities near the U.S.-Mexico border, among other mandates.  Then, on Friday January 27 at 4:43pm, Trump issued an executive order banning entry into the United States of all citizens of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen, including lawful permanent residents and non-immigrant visa holders, such as students and temporary workers.  These executive orders created chaos at United States airports, stranded refugees, separated families, mobilized lawyers, and produced six separate injunctions from federal judges persuaded that they are likely illegal.

One author of this post, Amanda Frost, is a law professor who is serving this year as Acting Director of American University’s Immigrant Justice Clinic, which provides assistance to indigent and low-income immigrants in the Washington, D.C. metropolitan area.  The other author, Ann Garcia, is one of sixteen clinic students who has devoted most of this academic year to representing clients in immigration court.  For the past two weeks, the clinic has been forced to respond to nearly daily crises for our clients and our community.  We’ve offered our legal services at international airports, taken on a Sudanese client who has been barred from visiting his hospitalized U.S. citizen child, met with our clients to warn them of the new risks, and spent our free time protesting at the White House.  It’s hard to believe we are only two weeks into the Trump presidency.

Two days after the election, the clinic students and faculty met to discuss our response to the election.  During the campaign for President, Trump had been a fiery radical—proposing a Muslim ban one day, insisting on removing all 11.3 million unauthorized immigrants the next.  He declared that once President he would build a “big, beautiful, powerful wall” on the Mexican-U.S. border, and Mexico would pay for it.  He was particularly adamant about going after “criminal aliens”—a group that he didn’t define explicitly, but seemed to include longtime lawful permanent residents who had committed minor offenses, and immigrants who had been charged but not convicted of crimes.  We knew we had to prepare for the worst.

At our post-election meeting, we decided to counsel those of our clients lacking secure immigration status, advising them not to leave the country and to come up with a “safety plan” if they were arrested.  We recommended that they memorize our phone number, as well as the number of a close friend or relative.  We told them they needed to execute a power of attorney, arrange for back-up child care, and be sure that someone could access their bank account to pay for rent and other expenses in case they were detained or removed.  Many asked us what their chances were avoiding detention and deportation, and we had no easy answers.  No one knew what would come next.

We also tried to support the community of immigrants living in the Washington, D.C. area (which includes Northern Virginia and Maryland).  We joined forced with an alliance of local immigration organizations and offered know-your-rights presentations to local schools and churches.  And we have offered our assistance to immigrant students and staff at American University, which is currently weighing whether to join the dozens of other institutions of higher education in announcing that it will not assist immigration authorities seeking to enter or search the campus for unauthorized immigrants, some of whom may be students or staff.

Looking back, the period that followed was the calm before the storm.  As we waited for Trump to take office, we noted that he seemed to be softening his stance towards immigrants.  He abandoned the idea of removing all unauthorized immigrants immediately—an impossible task that would cost billions of dollars and create chaos—and instead promised to prioritize removal of “criminal aliens,” not so different from President Obama (who removed 2.8 million unauthorized immigrants during his 8 years in office).  Trump even showed sympathy for some unauthorized immigrants , describing them as “terrific people.”    Finally, he nominated John Kelly for Secretary of the Department of Homeland Security, a moderate on immigration who acknowledged during his confirmation hearing that “law abiding individuals” were unlikely to be removed due to “limited assets to secure the law.”  We began to hope that President Trump would take a less radical stance than his previous statements suggested.

We were wrong.  Now that we are two weeks into Trump’s Presidency, we know that he will try to turn the campaign rhetoric into reality.  Trump’s January 25 executive order further expands the federal deportation machine, ramps up detention, expands enforcement priorities, and seeks to penalize cities and states that have chosen not to assist federal immigration authorities.  (To accomplish these goals he first has to convince Congress to fund them, and his efforts to coerce cities into assisting in immigration enforcement are sure to be challenged on constitutional grounds).

Then on January 27, Trump signed into law a sweeping executive order that is a variation on the Muslim ban he proposed during the campaign.  The order bans all refugees from entering the United States for 120 days, and indefinitely bans Syrian refugees from coming to the United States.  He also barred all citizens of seven countries –Yemen, Syria, Iran, Iraq, Sudan, Somalia, and Libya—from entering the United States, even if they are lawful permanent residents who have lived in the country for most of their lives.

Chaos ensued.  Customs and Border Patrol officials were forcing visa holders back onto planes and refusing to let lawyers meet with their clients.  One officer told a lawyer who complained that if he didn’t like it, he should “call Mr. Trump.”  No one else could help him.

Happily, the rule of law, judicial independence, and civil society are resilient.  Lawyers and protestors swarmed to airports—including several students from the Immigrant Justice Clinic.  Legal services organizations, immigration advocacy organization, law clinics, and state attorneys general filed suits in New York, Virginia, Washington, California, and Massachusetts.  Injunctions were issued within twenty-four hours barring Customs and Border officials from deporting refugees back to countries where their lives were in danger, requiring that citizens from the banned countries with visas be allowed to enter, and mandating access to counsel.

The Trump administration was slow to respond to these injunctions.  Although it reversed itself and agreed that lawful permanent residents from the seven banned countries could enter the United States despite the executive order, it did not appear to allow nonimmigrants from those countries to enter the United States, and thus airlines were refusing to permit these visa holders onto flights.  But then on Friday night the district court in Washington state issued a clear and sweeping injunction halting the implementation of the executive order.  The Trump Administration is now complying with that order, but not before requesting an immediate stay of the Washington judge’s decision, which was rejected by the Ninth Circuit Court of Appeals last night.  As we write this, we are about to leave for Dulles airport to welcome our clinic’s Sudanese client back to the United States to visit his family.  The legal fight is just beginning, but if nothing else this past week has proven that judges and lawyers can serve as a bulwark against hastily drafted and illegal executive action against immigrants.

For more information on the WCL Immigrant Justice Clinic, visit the webpage!